Report No. 185
This Section deals with the evidence of wives or husbands in civil and criminal cases. It reads as follows:
"120. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness."
At the outset, it is clear that the word 'suit' has to be replaced by the word 'proceeding'.
So far as civil proceedings are concerned, there is no need to make any amendment in this Section. But, so far as criminal proceedings against a spouse are concerned, the need to balance family harmony and the quest for truth has to be balanced. In the 69th Report, it was pointed out in Chapter 61 that such a balance though not available earlier, was achieved in England.
Under Lord Brougham's First Evidence Act, 1851, Section 2 made parties (but not their spouses) competent and compellable. Section 3 made an exception in criminal proceedings. Section 4 made exceptions in proceedings instituted in consequence of adultery and in actions for breach of marriage.
Under Lord Brougham's Second Evidence Act, 1853, Section 1 made spouses competent and compellable. Section 2, however, made exceptions to Section 1 in criminal proceedings and 'in any proceeding instituted on consequence of adultery.
Under Evidence Further Amendment Act, 1869, Section 1 the exceptions made in the 1851 and 1853 Acts in respect of actions for breach of marriage and proceedings instituted in consequence of adultery were repealed.
Under the Criminal Evidence Act, 1898 none of these statutes applied to criminal cases, so that the common law rule of the competence of parties and the spouses continued to apply. The Act of 1898 made the accused competent, but not compellable as a witness. It also made certain statutory changes pertaining to the wife of the accused. The Act made her a competent witness for the prosecution in certain special cases but she is stIllustration not compellable.
In 1977, when the 69th Report was prepared, the law in England was summarised as follows: (see para 61.5)
"The present position in England, is that the parties and their spouses are (subject to privilege) competent and compellable in civil cases. The accused is competent, but not compellable. The spouse is not competent or compellable except in a few cases. This, of course, is a very broad statement of the position".
The 69th Report then stated, in a very detailed discussion that while ascertainment of truth is important, to compel a wife or husband to give evidence in criminal cases against each other may lead to family disharmony and this was accepted in England except in a few types of cases. This aspect was adumbrated by the House of Lords in Leach v. R: 1912 AC 305 and passages from the speeches of Lord Atkinson and Earl Loreborn L.C, were quoted. (para 61.15). Finally in para 60.16 it was stated that in criminal cases the spouse should not be compelled to give evidence against the other spouse and in para 61.17, a proviso was drafted for addition below Section 120.
We shall now refer to the position after 1977. Of course, there is protection against self-incrimination under Article 20(3) of the Constitution. Under Section 313 of the Code of Criminal Procedure protection still remains. The accused has however, the option to examine himself as a witness for the defence. If the accused has, however exercised the option, he has to take the oath. His position is that like that of any other witness, and he can be crossexamined. So the accused in India is now competent but not compellable witness.
In the Report of the Commission on 'Right to Silence' (180th Report), the Commission noticed that some changes were made in England in 1994, under the Criminal Justice and Public Order Act and by the Youth Justice and Criminal Evidence Act, 1999 permitting adverse inference to be drawn against an accused if he does not answer certain questions. It was pointed out that the Australian Law Commission, in a recent Report did not think it desirable to follow the changes in UK.
Then the 180th Report stated that having regard to Article 20(3) of the Constitution of India, it was not possible to make inroads into the right against self-incrimination and get into serious problems found in UK today while examining the accused and his lawyer, as to the reasons for his silence. The Commission did not think it desirable to follow the alternative suggested by the Australian Law Commission. That is still the position so far as the accused is concerned.
In England, as far as the evidence of spouses in concerned, there was a further amendment under Section 80 of the Police and Criminal Evidence Act, 1984 (see para 44.51 of Phipson, 15th Ed., 1999). Further, Section 80 of the 1984 Act has been amended by the Youth and Criminal Evidence Act, 1999. (see para 8.2 to 8.25 of Phipson, 15th Ed., 1999).
The position in England now is as follows:
(a) So far as the competence of the wife or husband of the defendant is concerned, the husband or wife of a defendant is always competent to give evidence on behalf of the defendant or a co-defendant and is competent to give evidence for the prosecution unless he or she is himself or herself also charged in the proceedings.
(b) So far compellability of the wife or husband of the defendant, for the defendant is concerned, subject to the same exception, the husband or wife of a defendant is compellable to give evidence on behalf of the defendant.
(c) However, so far as the compellability of the wife or husband of the defendant for the prosecution is concerned, the spouse is also compellable to give evidence for the prosecution, again subject to the same exception, in respect of any offence involving either-
(1) An assault on, injury or threat to that spouse; or
(2) An assault on, injury to, threat of injury to or sexual offence in respect of a person who was under 16 at the time of the alleged offence:
A person who is compellable for prosecution is compellable against any person charged with one of the specified types of offence. Thus a spouse of a defendant can be compelled to give evidence in relation to a specified offence for the prosecution against a co-defendant of his or her spouse. (d) So far as compellability of the wife or husband of the defendant for a codefendant is concerned, a spouse or a defendant is concerned, the spouse of a defendant is compellable for a co-defendant in respect of the same offences for which he or she would be compellable for the prosecution. It is the codefendant who seeks to compel the spouses who must be charged with one of the specified offences. (see para 8.25, Phipson).
Thus, while at one time, at common law, even parties to the suit were incompetent witnesses on the ground of self-interes.- "Nemo in propria causa testis esse debet" (No one can be witness in his own cause) and husband or wife was also incompetent to give evidence either for or against one another, all these were swept away except for a few exceptions.
Sarkar (15th Ed., 1999, page 1973) points out that in Sri Lanka Section 120 has been redrafted. Two recent cases are noticed. In K. Saroja v. Valliammal Ammal: 1997 AI HC 1959, in a suit for specific performance of contract of sale, when the wife who was the purcharser pleaded that she was not aware of any previous contract but the wife had not appeared as a witness, and instead her husband appeared as a witness, the husband was held to be a competent witness for the wife in civil proceedings.
But in Public Prosecutor v. Abdul Majid, 1994(3) Malayan L.J 457, the acused's wife, it was held, could be compelled to give evidence for the prosecution. It was precisely this aspect that came up for consideration before the Commission in the 69th Report and they quoted the following observations of Lord Atkinson in Leach v. R (1912) A.C. 305 (HL):
"The principle that a wife is not to be compelled to give evidence against her husband is deep seated in the common law of this country, and think if it is to be overturned, it must be overturned by a clear, definite and positive enactment..."
Earl Loreburn observed in the same case:
"It is very desirable that you ought not to compel a wife to give evidence against her husband in matters of criminal kind"
We however do not want to enact the long winding provision in the English Act of 1884 and 1999.
We agree that, as recommended in para 61.17, the following proviso be added below Section 120:
"Provided that the spouse of the accused in a criminal prosecution shall not be compelled to give evidence in such prosecution except to prove the fact of marriage unles.-
(a) such spouse and the accused shall both consent, or
(b) such spouse is the complainant or is the person at whose instance the first information of the offence was recorded, or
(c) the accused is charged with an offence against such spouse or a child of the accused or a child of the spouse, or a child to whom the accused or such spouse stands in the position of a parent."